On behalf of the defendants-appellants, the cause was
submitted on the briefs of Jeffrey S. Fertl and Melissa J. Lauritch of Hinshaw & Culbertson LLP ofMilwaukee.

Respondent

ATTORNEYS:

On behalf of the plaintiffs-respondents, the cause was
submitted on the brief of W. Timothy Steinle and Mark C. Severino of Terschan, Steinle & Ness ofMilwaukee.

2011 WI App 128

COURT OF APPEALS

DECISION

DATED AND FILED

August 17, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2010AP1637

Cir. Ct. No.2008CV1373

STATE OF WISCONSIN

IN COURT OF
APPEALS

Blaise Mahoney and Karen Mahoney,

Plaintiffs-Respondents,

Dean Health Care Inc.,

Involuntary-Plaintiff-Respondent,

v.

Menard Inc. and Zurich American Insurance Company,

Defendants-Appellants.

APPEAL
from an order of the circuit court for Kenosha County:bruce
e. schroeder, Judge.Affirmed.

Before Brown, C.J., Neubauer, P.J., and Brennan, J.

¶1BROWN, C.J.Menard,
Inc. and Zurich American Insurance Company appeal the denial of their motion to
dismiss Blaise and Karen Mahoney’s complaint against them.The motion was based on the fact that the
complaint served on Menards[1]
was unsigned even though it was nonetheless authenticated by the clerk of
courts.The complaint on file with the
trial court was signed.Menards claims
that despite the authentication and despite the signed complaint on file with
the court, the lack of a signature on its copy is a fundamental defect that
deprived the court of personal jurisdiction over it.We disagree—the filing of a signed summons
and complaint with the court properly commenced this lawsuit, and the
authenticated copy served on Menards gave it sufficient notice to that
effect.We affirm.

¶2The facts relevant to this appeal are few.On June 27, 2008, Mahoney filed a signed
summons and complaint with the circuit court of Kenosha county.Some of the copies Mahoney’s attorney had
authenticated by the court were not signed, and an unsigned copy was ultimately
served on the defendants in July 2008.On or about April 16, 2009, counsel for Menards contacted Mahoney’s
counsel and informed him of a missing signature. Mahoney’s counsel went to
the courthouse to investigate and discovered that the complaint on file with
the court was signed. After discussion with counsel for Menards,
a copy of the signed and authenticated complaint on file with the court was
served on Menards in May 2009.In June
2009, Menards obtained new counsel.Then, in November 2009, Menards’ new counsel filed a motion to dismiss
alleging that “the summons and complaint served on the defendants were not
properly subscribed … rendering them defective.”That motion was denied by the trial court,
and we allowed this interlocutory appeal.[2]

[A] civil action … is commenced as to any defendant
when a summons and a complaint naming the person as defendant are filed with
the court, provided service of an
authenticated copy of the summons and of the complaint is made upon the
defendant … within 90 days after filing.

Every pleading, written motion, and other paper shall
be signed by at least one attorney of record in the attorney’s individual name….An unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being called to the
attention of the attorney or party.

It is undisputed that (1) the
copy of the summons and complaint served on Menards wasauthenticated, (2) the original summons and complaint on file with
the court was signed, and (3) the copy of the summons and complaint served on
Menards was not signed.

¶4This case then hinges on whether the service of an unsigned
but authenticated copy of a summons and complaint is a technical or fundamental
defect when the original on file with the court is signed.[4]If the defect is fundamental, the court lacks
personal jurisdiction to proceed; but if the defect is technical, and if the
defendant was not prejudiced, the court has personal jurisdiction.American Fam. Mut. Ins. Co. v. Royal Ins.
Co. of Am., 167 Wis. 2d 524, 533, 481 N.W.2d 629 (1992).Mahoney cannot prevail unless we find that
the defect was technical rather than fundamental.

¶5Menards correctly points out that our supreme court has found
fundamental defects when an unauthenticated copy of a summons and complaint was
served on defendants and when an improperly subscribed complaint was filed with
the court.See id. at 535 (failure
to give the clerk an opportunity to authenticate a photocopy of complaint
before service is a fundamental defect); Schaefer v. Riegelman, 2002 WI 18,
¶¶19, 25, 250 Wis. 2d 494, 639 N.W.2d 715 (improperly subscribed complaint
filed with the court was a fundamental defect).We could not find, and the parties did not point us to, any case law
dealing with a situation where the complaint served on defendants was
authenticated, but not signed, and the complaint on file with the court was
signed.So, we must determine whether
the defect in this case is technical or fundamental.

¶6Whether a defect is fundamental or technical is a question of
law that we review de novo, and the burden is on the party alleged to have
served the defective pleading (Mahoney in this case).See Rabideau v. Stiller, 2006 WI App
155, ¶¶8-9, 295 Wis. 2d 417, 720 N.W.2d 108.“Wisconsin courts have consistently looked to the purpose of the statute
when interpreting whether fundamental or technical defects exist under statutes
prescribing the manner of service.”Bendimez
v. Neidermire, 222 Wis. 2d 356, 362, 588 N.W.2d 55 (Ct. App. 1998)
(citations omitted).“[W]hen a pleading
that contains a defect nevertheless comports with the purpose and nature of a
statute, the defect is generally technical.”Schaefer, 250 Wis. 2d 494, ¶29.

¶7Thus, the issue in this case is one of statutory
interpretation, which “begins with the language of the statute.”See State ex rel. Kalal v. Circuit Court,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted).If the meaning is plain, we ordinarily stop
the inquiry.Id.The context in which a statute appears is
relevant to its plain meaning, as is prior case law interpreting the
statute.Berkos v. Shipwreck Bay Condo.
Ass’n, 2008 WI App 122, ¶8, 313 Wis. 2d 609, 758 N.W.2d 215.

¶8The supreme court has stated that the purpose of Wis. Stat. § 802.05 is to “place a
professional obligation on the attorney as an officer of the court to satisfy
himself [or herself] that there are grounds for the action.”Schaefer, 250 Wis. 2d 494, ¶29
(citations omitted).Likewise,
§ 802.05(2) states:

By presenting to
the court … a pleading … an attorney … is certifying that to the best of
the person’s knowledge, information, and belief … all of the following:

(a)The
paper is not being presented for any improper purpose ….

(b)The
claims, defenses, and other legal contentions stated in the paper are warranted
by existing law ….

(c)The
allegations … have evidentiary support ….

(Emphasis added.)So, the emphasis of the § 802.05(1)
requirements seems to be on the pleading that is filed with the court, rather
than a copy that is served on a party.

¶9The supreme court’s holding in Gaddis v. LaCrosse Prods., Inc.,
198 Wis. 2d 396, 542 N.W.2d 454 (1996), is instructive.In Gaddis, the supreme court
found a technical defect when an unsigned summons was filed with the court and
served on the defendant with a signed complaint.Id. at 399. The Gaddis court emphasized
that when the complaint was signed, the purpose of Wis. Stat. § 802.05 was fulfilled even without a signed
summons on file with the court.Gaddis,
198 Wis. 2d at 399, 405.The case is
significant because it shows the court’s willingness to apply the technical
defect analysis to some cases where the letter of § 802.05 may have been
violated, but its purpose is fulfilled.[5]In this case, as in Gaddis, § 802.05’s
purpose of placing an obligation on the attorney as an officer of the court was
fulfilled when Mahoney filed a signed complaint with the court.

¶10Wisconsin Stat. § 801.02
requires that the summons and complaint served on defendants be authenticated,
but says nothing about whether a signature is a condition of proper authentication.
Despite the statute’s silence, Menards essentially argues that its copy must be
an exact copy in order for the authentication to be valid.This argument requires us to examine the
supreme court’s holdings regarding authentication.

¶11From
reading the case law of our supreme court, the American Family court
explained that the purpose of authentication is two-fold:first, to give assurance by the clerk that
copies served are true copies of filed documents and, second, to provide the
case number for future reference.American
Family, 167 Wis. 2d at 530.At
first blush, one could read the case to stand for the proposition Menards
aspires to—that the copy must be an exact replica of the original for
authentication to be any good.But American
Family goes on to distinguish between cases where there is a technical
defect based on a clerk’s clerical error, such as failing to stamp a complaint
with the proper case number, and cases where there is a fundamental defect
based on the complainant serving a copy of the complaint that is not
authenticated (i.e. not presenting the clerk with the opportunity to
authenticate the document).Id.
at 533-34. So we cannot interpret it to say that every failure to meet
the stated purpose of authentication constitutes a fundamental defect.We think Mech v. Borowski, 116 Wis. 2d
683, 686-87, 342 N.W.2d 759 (Ct. App. 1983), distills the essence of the Wis. Stat. § 801.02(1)
authentication requirement—authentication tells a defendant first and foremost
that a complaint is on file with the court, so the lawsuit is real.Seeid.
(service of complaint before filing with the court was a fundamental defect in
part because failure to file the lawsuit with the court first could lead to
lawsuits that are not a matter of public record, which § 801.02(4) was
meant to abolish).

¶12Obviously,
the copy of the summons and complaint received by Menards was not identical to
the one filed in that it was missing signatures, so the clerk erred by
authenticating the unsigned copy, and the attorney erred by failing to sign it.However, Menards has not alleged that its
copy differed in any substantive way from the original.So, it is obvious to us that the copy of the summons
and complaint Menards received gave it notice that the allegations contained
within it were on file with the court.As we already explained, the purpose of the signature requirement was
fulfilled in the signed complaint on file with the court.We cannot see how the purpose of the
authentication requirement in Wis. Stat.
§ 801.02 was unfulfilled based on the missing signature alone.So, yes, there was a defect.But it was a technical defect, not a
fundamental one.Mahoney asserts that
the defect was not prejudicial, and Menards does not dispute that assertion, so
we need go no further.SeeMervosh v.
LIRC, 2010 WI App 36, ¶10, 324 Wis. 2d 134, 781 N.W.2d 236
(arguments not refuted are deemed admitted).

By the Court.—Order affirmed.

[1] We
will refer to the defendants collectively as “Menards,” and the plaintiffs
collectively as “Mahoney” throughout this opinion.

[2] We
granted Menards’ petition for leave to appeal in an order dated July 30,
2010.In it, we stated that we would
consider “only whether the trial court erred when it determined that service of
an unsigned but authenticated copy of the summons and complaint was proper.”Therefore, that is the only issue we address.

[3] All
references to the Wisconsin Statutes are to the 2009-10 version unless
otherwise noted.

[4] Mahoney
argues that there was no defect at all, but we find that argument
unpersuasive.The unsigned complaint
served on Menards was defective.